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Discussion
Discussion
First of all, I must say that I have considerable sympathy both for IN’s representative and for the members of the Tribunal. They were all doing their best to ensure that IN’s right to an effective and timely review of the legality of his detention was upheld, but the circumstances made this a challenging task. I also have considerable sympathy for IN, who was at the relevant time detained in conditions of seclusion. Such conditions can hardly have been conducive to focussing on his hearing.
That being said, the hearing before the Tribunal ended up in a bit of a muddle. In the paragraphs that follow I will try to give clear guidance on what should be done should such circumstances arise again.
- Heading
- The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2) (a), (b)(i) and (3) of the Tribunals, Courts and Enforc
- This appeal is about the Appellant, who is a patient detained at Broadmoor ( a secure psychiatric hospital). It is about his right to have his detention reviewed by a tribunal (even where he makes no
- Balancing the interests of open justice with the need to avoid a disproportionate infringement of the Appellant’s right to respect for his private and family life, I have decided not to use his name i
- Background
- The Hearing before the First-tier Tribunal
- Legal framework
- The Mental Capacity Act 2005
- The HESC Rules
- The Convention
- The First-tier Tribunal’s decision
- The permission stage
- Discussion
- Rule 11(7) appointments
- Capacity
- Capacity to make decisions about applying to the mental health tribunal
- Capacity to decide whether to appoint a representative
- Who is to assess capacity to make decisions about providing instructions?
- The Tribunal’s decision re IN’s capacity to make decisions about giving instructions
- What is a Rule 11(7)(a) appointed legal representative to do in the absence of express instructions?
- Was the representative’s appointment terminated?
- The adjournment application and the reasons for it
- Materiality
- Conclusions